Radakovic and Buzov

[2011] FamCA 6

FAMILY COURT OF AUSTRALIA

RADAKOVIC & BUZOV [2011] FamCA 6

FAMILY LAW – CHILDREN – school child is to attend – mother to be responsible for the cost and expenses of attending school

Family Law Act 1975 (Cth)

APPLICANT: Ms Radakovic

RESPONDENT: Mr Buzov

FILE NUMBER: SYC 4736 of 2007

DATE DELIVERED: 13 January 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 10 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE RESPONDENT: Mr Cumming

Orders

1. An order is made in terms of Exhibit A marked by the Court on 8 November 2010 as set out hereunder:

   WIFE’S MINUTE OF ORDER:

   1.   That the parties forthwith shall do all things to ensure that the child [F] born […] July 2000 is enrolled at and attends [S School] for the 2011 school year upon the basis that:

   1.1the husband contends that he does not have any capacity to contribute to or pay any of the child’s education costs and expenses at that school; and

   1.2the wife contends that the husband has capacity to contribute to and pay one half of those costs and expenses; and

   1.3the issue of such contribution ( if any) will be subject of child support review and/or departure determinations; and

   1.4the husband contends that at no time did he have an expectation that the child would attend this school.

2. Pending the determination of the wife’s application for the husband to contribute to the cost of the child F’s schooling at S School, or until the parties reach some other agreement in relation to the payment of schooling costs for the child, the Court notes that the wife has undertaken to be responsible for the schooling costs.

IT IS NOTED that publication of this judgment under the pseudonym Radakovic & Buzov is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4736 OF 2007

MS RADAKOVIC

Applicant

And

MR BUZOV

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application contained in a minute of order, marked as Exhibit A during the mention of this matter on 8 November 2010. That minute represents orders sought by the wife on an interim basis. Additionally, the wife filed an amended application for final orders and interim orders on 14 December 2010. That application sought interim orders relating to child support.  After some discussion between counsel and the bench an order was made which was not opposed by the husband nor was it consented to.

2. The application then remaining for determination seeks, as an interim order, that the parties’ child F be enrolled to commence the 2011 school year at S School. The husband has not filed any minute of order he seeks in relation to the orders sought by the wife in her Exhibit A, however, he relies upon a response which was filed on 6 May 2010 which sought the dismissal of orders sought by the wife relating to schooling for the children of the marriage.

3. In support of the wife’s application she relied on the following:

   a)Her affidavit sworn 4 September 2009;

   b)Her amended application filed 14 December 2010;

   c)Her Financial Statement filed 14 December 2010;

   d)Her affidavit sworn 14 December 2010;

   e)A child and family assessment document dated 11 January 2010;

   f)The Family report dated 30 September 2010 (marked as Exhibit X1);

   g)The Court orders of 23 May 2008;

   h)A family report of Ms G dated December 2007; and

   i)A proof of evidence marked as Exhibit W1. This was received into evidence without objection.

4. The husband relied upon the following documents:

   a)His response filed 23 December 2010;

   b)His affidavit filed 23 December 2010; and

   c)His financial Statement filed 23 December 2010.

5. There was some argument about the manner in which the hearing would proceed. The wife’s counsel sought to cross-examine the husband for a short period of time. Having considered that application I dismissed it and the hearing then progressed on submissions.

The Wife’s Case

1. The wife submitted the order sought by her should be granted for the reasons set out below.

2. F has expressed a clear wish to be able to commence his year 5 schooling at S School. This was contained in evidence from the Family Report. In that report the Family Consultant opined that the wishes of the child should be given significant weight.

3. The evidence of the wife is that the father had consented to the child attending S School this year. That evidence is corroborated by the references in the family report. Although the offer referred to in the report is said to be conditional and was not available to the Court, their remains the fact that the father’s consent to the school has been given. (I note there is evidence from the father which denies he ever gave consent to the child attending S School in about 2000).

4. The child has now attended the S School orientation program to prepare children who are to start at the school in 2011.

5. All the boys in his class at his 2010 school will be attending new schools in 2011. He would be the only boy in the class if he were to remain at that school.

6. Most of his school friends will attend at S School this year.

7. There is likely to be an adverse consequence to the relationship between the child and his father if he is prevented from starting at S school.

8. In relation to the financial consequences of a change of school there is evidence from both parties relating to cost of schooling. The wife is seeking an order in her application for final orders, that the husband pay half the cost of the schooling. The tuition fees for years 5 and 6 are $4,293 per annum. There are other fees which amount to about $1,300 per year. In addition there are uniform costs and no doubt other costs such as excursion costs.

9. The wife says that if the worst case arises and the husband contributes nothing towards the financial cost of supporting the children in her home she will meet all of the cost of F’s school. She has a redraw facility on her home mortgage of $280,000.

The Husband’s Case

1. The husband’s case, for this hearing, is to oppose the order sought on the basis that it is financially unsustainable for this family to educate the children in the manner proposed by the wife. The husband is unable to contribute anything towards the cost of the children’s education at this time nor is he required to pay child support. There is a child support assessment operative now which requires the wife to pay child support to the husband. This came about because the husband gave up his former occupation to take up study and therefore has no income at the present time. The assessment is currently under challenge by the wife.

2. The husband’s submission is that the best interests of F are not served by starting him at a school which he will have to be removed from in the immediate to short term future because the family cannot pay his school fees. He says that when considered with the cost of proposed schooling for the parties’ daughter C the total cost of schooling is prohibitive for the family.

3. The husband points to the wife’s financial statement and says that at the current time the wife is running in deficit. He says she has clearly demonstrated she cannot pay the school fees unless she borrows money or finds additional income. He says that although the wife says she has a redraw facility on her mortgage she has not said what the impact on repayments would be of increasing her indebtedness to the mortgagee.

Determination

1. The Family law Act1975 (Cth) (“the Act”) requires that I make a decision which is in the best interests of the child. Section 60CC of the Act prescribes what the Court must consider in order to determine what is in the best interests of the child. Such section is clearly aimed at final determinations, however, it is also applicable to interim determinations. As such I now address the matters set out in that section. In so doing I take into account the other relevant sections including section 60B which sets out the objects and principles underlying the objects. I also note the provisions of sections 60CA and 61DA(3).

Section 60CC

1. Section 60CC(2)(a) of the Act requires me to consider the benefit of the child having a meaningful relationship with both parents. This consideration is addressed by the wife and I will refer to it again later in these reasons.

Section 60CC(3)

1. The views of F have been the subject of evidence best contained in the family report. I am satisfied the child has made it clear that he wishes to be able to attend at S School this year. I also accept the opinion of the Family Consultant that his views should be given significant weight.

2. I accept that the child has a good and close relationship with each of his parents. I also accept he has a good relationship with the husband’s wife.

3. I also accept there is an appropriate and good relationship between F and his sister.

4. Although there have been significant problems between the parents in terms of being able to communicate appropriately in relation to their children there are signs that each parent is attempting to address that deficiency. There nonetheless remains a less than optimal relationship between the parents. I do accept however that each parent supports the children being able to have a good and close relationship with the other parent.

5. F is an 11 year old boy who has been assessed by the Family Consultant to be of above average stature and maturity for his age. He has a peer relationship with his school colleagues. It appears common ground that all of his male peers will be leaving the school they attended in 2010. Most will be attending S School. If F remains at this school he will be the only boy in his class.

6. There are allegations by the wife that the husband has not demonstrated an appropriate attitude towards the responsibilities of parenthood. These allegations largely relate to the husband giving up employment to undertake a different career path without adequately making provision for the financial support of the children during that change. Those allegations have not been properly ventilated in this hearing and I therefore decline to make any finding in relation to same until there has been a proper hearing in the matter.

7. Further, the husband alleges that his signature has been forged on an application to enrol F in S School. That allegation has not been the subject of testing in this hearing and I decline to make any finding in relation to same in this hearing.

8. The wife has made an allegation of violence against the husband. That allegation has not been tested in this hearing. I decline to make any finding in relation to same.

9. The husband’s case, articulated before me in this hearing, is that if F is enrolled at S School it appears that inevitably he will have to leave that school at some time in the future and the husband is concerned that time may come sooner rather than later. If that were to occur then the husband is concerned as to the emotional and long term impact on the child of such an event. He says he cannot afford to contribute to the schooling expenses of the children and at the same time pay a proper level of child support as assessed against him.  He further submits that it is unrealistic for the wife to say she will meet the school fees. Further, assuming she is able to pay F’s school fees for the moment that will certainly change if C is enrolled in B School in the next few years.

10. The wife is dedicated to F attending S School. There are good reasons why that school would suit him well. The school is very close to the mother’s residence. Most of his school friend’s from his current school will be attending S School this year and the child has his heart set on attending the school.

11. The wife is prepared to make sacrifices to her own financial security and comfort in order to provide the child with the schooling she considers will be best for him. This attitude of the wife is not unique in our community. The annuls of family histories in Australia are replete with recollections of the sacrifices parents have made and continue to make in order to give their children what they consider the best start in life.

12. Although the wife’s Financial Statement shows that she is already running a deficit family budget, I am sure she has the dedication and commitment to tailer her budget to find the funds for F’s schooling. In addition, I am confident that the situation where the husband contributes nothing by way of child support to the wife will not continue for a long period of time. He has expressed this view himself through his solicitor in the hearing before me. There will be a hearing in relation to the child support disputes between the parties at some time this year. In that hearing the wife seeks a departure from the assessment which requires her to pay child support to the husband. The husband, to his credit has agreed to a stay of the requirement to pay that assessment until the wife’s application can be determined.

13. I am concerned about the impact on F’s relationship with his father should it become clear to him that he has been prevented from attending S School because of his father’s opposition. Although I consider that the child would not stop loving his father, I am concerned he may lose respect for him. The potential for a complete breakdown in their relationship would loom if he was prevented, in those circumstances, from attending his chosen school.

14. Having considered all those matters I conclude that an order should be made which requires the parties to cause F to be enrolled at S School to commence there in the first term of this school year. The wife is to be responsible for the financial support of the child’s school enrolment pending determination of her application that the husband contributes to that cost.

15. I propose to make orders pursuant to the minute of order sought by the wife in Exhibit A marked on 8 November 2010. In addition, I note that the wife will pay all of F’s school expenses until there is an order of the Court or an agreement between the parties providing for a different arrangement.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate: 

Date:  13 January 2011